Fortt v. Hazlewood

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Tschaka Fortt
v. 	Case No. 20-cv-1082-JL
Robert Hazlewood,
Warden, FCI Berlin
Report and Recommendation
Tschaka Fortt, who is incarcerated at the Federal
Correctional Institution in Berlin, New Hampshire (“FCI
Berlin”), brought a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241, challenging the denial of credit
for the time he served before he was sentenced on his federal
conviction. 	The warden has moved for summary judgment. 	Fortt
was given an extra thirty days to do so, but he did not file a
response. 	The motion for summary judgment is referred to the
undersigned magistrate judge for a report and recommendation.
28 U.S.C. § 636(b)(1)(B).
Standard of Review
Summary judgment is appropriate “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” 	Fed. R.
Civ. P. 56(a). 	A material fact is one that “‘carries with it
the potential to affect the outcome of the suit.’” 	French v.
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Merrill, 15 F.4th 116, 123 (1st Cir. 2021) (quoting Santiago-
Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 52 (1st
Cir. 2000)). 	A genuine factual dispute exists if “a reasonable
jury could resolve the point in the favor of the non-moving
party.” 	Id. 	The court construes the summary judgment record in
the light most favorable to the nonmoving party. 	Benson v. Wal-
Mart Stores East, L.P., 14 F.4th 13, 17 (1st Cir. 2021).
Under the Local Rules for the District of New Hampshire,
“[a] memorandum in support of a summary judgment motion shall
incorporate a short and concise statement of material facts,
supported by appropriate record citations, as to which the
moving party contends there is no genuine issue to be tried.” LR
56.1(a). 	A memorandum in opposition to a motion for summary
judgment must “incorporate a short and concise statement of
material facts, supported by appropriate record citations, as to
which the adverse party contends a genuine dispute exists so as
to require a trial.” 	LR 56.1(b). 	“All properly supported
material facts set forth in the moving party's factual statement
may be deemed admitted unless properly opposed by the adverse
party.” 	Id.; see also Fed. R. Civ. P. 56(e)(2).
Background
Because Fortt did not file a response to the warden’s
motion for summary judgment, the properly supported facts
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provided by the warden are deemed to be admitted.
The circumstances that gave rise to Fortt’s petition began
in Delaware in January of 1998 when Fortt was arrested on
several offenses and a Delaware state court revoked Fortt’s
probation. 	He was sentenced to 30 months of imprisonment on the
probation violation. 	In March of 1998, pursuant to a writ of
habeas corpus ad prosequendum, Fortt was taken by federal
authorities to answer federal drug charges. 	He was sentenced to
101 months of incarceration in federal court on September 25,
1998 (which was later reduced based on changes in the applicable
laws).
After he was sentenced in federal court, Fortt was returned
to state custody in Delaware on his probation violation
sentence. 	He was then sentenced to 22 years and 6 months on two
state charges to run consecutively to his probation violation
sentence. 	Fortt finished his state sentences in February of
2018. 	Fortt was immediately surrendered to the federal Bureau
of Prisons (“BOP”) to begin serving his federal sentence that
had been imposed in 1998.
The BOP determined that Fortt was not entitled to any
credit toward his federal sentence for the time he had served in
state prison because that time was counted to complete his state
sentence. 	In support of the motion for summary judgment, the
warden provided the declaration of Michelle Hassler, who is an
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analyst at the Designation and Sentence Computation Center of
the BOP. 	Hassler states that she reviewed documents from the
Delaware Department of Corrections which show that Fortt
received credit toward his state sentences from the date of his
arrest, January 26, 1998, through the date of his release from
state custody on February 13, 2018, which includes the time he
was in temporary federal custody, March 12 through September 25,
1998. 	Doc. 7-1, ¶ 16.
Discussion
In his § 2241 petition, Fortt seeks credit toward his
federal sentence of the time between March 12 and September 25,
1998, when he was in temporary federal custody. 	The warden
contends that Fortt is not entitled to that change in his
federal sentence because that time was credited toward his state
sentences. 	The warden moves for summary judgment on that basis.
A defendant serving a federal sentence will be given credit
for time he spent in detention before beginning his federal
sentence in two specified circumstances, but he is not entitled
to reduction of his federal sentence if the time has been
credited against another sentence.1 	18 U.S.C. 3585(b). 	When a
1 A petitioner must exhaust claims for credit under
§ 3585(b) through the administrative process. 	See Rogers v.
United States, 180 F.3d 349, 358 (1st Cir. 1999). 	The warden
raises no issue about exhaustion in this case.
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prisoner is held in federal custody before sentencing on a
federal offense but that time is credited toward a state
sentence, he is not entitled to a reduction of his federal
sentence for that time. 	United States v. Wilson, 503 U.S. 329,
334 (1992); Calmese v. Young, 837 F. App’x 604, 604-05 (9th Cir.
2021); Pope v. Perdue, 889 F.3d 410, 417-18 (7th Cir. 2018).
The undisputed facts presented for summary judgment show
that the time Fortt spent in temporary federal custody between
March 12 and September 25, 1998, was credited toward his state
sentences. 	For that reason, that time cannot be credited
against his federal sentence. 	Therefore, the warden’s motion
for summary judgment should be granted.
Conclusion
For the foregoing reasons, the district court should grant
the warden’s motion for summary judgment (document no. 7).
Any objections to this Report and Recommendation must be
filed within fourteen days of receipt of this notice. 	See Fed.
R. Civ. P. 72(b)(2). 	The fourteen-day period may be extended
upon motion. 	Only those issues raised in the objection(s) to
this Report and Recommendation are subject to review in the
district court. 	See Sch. Union No. 37 v. United Natl Ins. Co.,
617 F.3d 554, 564 (1st Cir. 2010). 	Any issues not preserved by
such objection(s) are precluded on appeal. 	See id. 	Failure to
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file any objections within the specified time waives the right
to appeal the district court's order. 	See Santos-Santos v.
Torres-Centeno, 842 F.3d 163, 168 (1st Cir. 2016).
______________________________
Andrea K. Johnstone
United States Magistrate Judge
April 19, 2022
cc: 	Tschaka Fortt, pro se
Seth R. Aframe, AUSA.
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